Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances involving miscarriage - Alleged failure of investigating police to procure scientific evidence which might have exculpated appellant - Evidence required to establish such a ground discussed.

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Jago v District Court of New South Wales [1989] HCA 46; (1989) 63 ALJR 640

The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321

Solicitors for the appellant: Aboriginal Legal Service

Solicitors for the respondent: Director of Public Prosecutions

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal against convictions on jury verdicts of two counts of an indictment by the Supreme Court of the Australian Capital Territory.

2. The case against the appellant was that, having struck up an acquaintance with a group of people late at night in a bar, he accompanied two of them, Louise Duchesne and Ian Campbell, when they left the bar, and that he attacked those two as the three were walking in a park. It was alleged that the appellant struck Campbell to the ground and that while Campbell was insensible of his surroundings the appellant threw Miss Duchesne to the ground, tore off her underpants and inserted several fingers into her vagina (an act statutorily classified as "sexual intercourse"), without her consent and knowing that she did not consent or reckless as to whether she did consent. It was common ground that immediately after a brief episode involving physical violence the appellant and the other two went away from the place of conflict. The convictions were of engaging in sexual intercourse with Miss Duchesne in the circumstances concerning consent which I have stated, and of inflicting actual bodily harm on Mr Campbell with intent to engage in sexual intercourse with Miss Duchesne, she being nearby.

3. The appellant's version of what happened is to be derived principally from his answers to questioning by the police, several of whom he met immediately after he and the other two persons had separated, and with whom he went voluntarily to a police station. He made an unsworn statement at his trial, in which he denied guilt of each of the charges, declared that there was "an altercation" during which he merely defended himself, but gave no account of the events which might be thought to be comprehended by the word "altercation". His account to the police, according to their evidence, the accuracy of which his counsel did not challenge, was that Mr Campbell said, while all three were walking together, "not to hurt the girl, so I held him and punched him in the mouth, and then did it again, and then the woman grabbed me around the throat, and I pushed her out of the way and then walked off, and the police stopped me".

4. The appellant voluntarily accompanied the police to a police station where he remained for several hours. After 8 a.m. that morning he was seen at the police station by a medical officer associated with the Australian Federal Police, Marcus Warwick Navin. Dr. Navin gave evidence that he had been asked to obtain a sample of the appellant's blood, which the appellant freely provided to him, that he examined the appellant's right hand at the request of the police to advise them whether what the doctor described as "a small injury to the hand" should be medically treated, and that he made no other examination of the appellant. Under cross-examination by counsel for the appellant Dr. Navin swore that he carried out no other examination because "I was only doing what I was asked to do", that Miss Duchesne had been found by him on medical examination earlier that morning to be menstruating heavily, that fingers which had that morning penetrated her vagina would after withdrawal be bloodied, and that traces of menstrual blood could be expected to remain under the nails of those fingers. He testified that "by scientific methods you can examine microscopic material from the fingernails the nail and the cuticle for forensic examination". The doctor further swore that he had supposed the appellant's right hand to have been washed after the "small injury" had been sustained and before he saw the hand, because the hand bore no blood and he judged that there would have been bleeding in consequence of the "small injury". But he insisted that his reason for doing no more than to take the blood sample and to advise that treatment of the injury to the right hand was unnecessary was that he was not asked to do more. The policeman in charge of the investigation of Miss Duchesne's allegations that morning, Detective Constable Kilfoyle, testified on the other hand that Dr. Navin "had the carte blanche to carry out what investigations of a forensic nature that he considered necessary". Mr Kilfoyle also gave evidence that he did not recall having seen on the appellant's hand any blood except blood which he took to have flowed in consequence of the injury to the appellant's right hand. It was a ground of the appeal that the convictions were unsafe and unsatisfactory because the failure of the police to cause material to be removed from the appellant's fingers under and about the nails during the period when the appellant was at the police station, with a view to scientific examination of the material in order to determine whether in that material there was blood, and whether the blood was Miss Duchesne's blood, constituted a failure by the police to perform the duty under which it was said that they lay to investigate fairly, thoroughly and competently the allegations of crime made against the appellant by Miss Duchesne and Mr Campbell. Because that duty had not been performed, the appellant had been deprived of the benefit of the evidence which such a scientific examination might have provided for his rebuttal of Miss Duchesne's allegation of "sexual intercourse," it was submitted. The utility in investigation of such an examination was so obvious, it was said, that the failure of the police to make arrangements for the examination should weigh heavily in favour of a conclusion that the convictions should be set aside.

5. It was not suggested by counsel for the appellant that the appellant had conceived, much less expressed to the police, a belief that a scientific examination of material adhering to his fingers should be undertaken, nor that he would, if he had been told that he might leave the police station shortly after he went there, have so acted that he would have received advice that he should himself procure such an examination. On the other hand, it was not suggested by counsel for the respondent that the appellant might have refused a request by the police to permit the material to be collected for such an examination.

6. Counsel for the appellant did not submit that any police officer should be regarded as having decided for some improper reason not to suggest that such an examination be made. The ground of appeal was argued on the assumption that the police failed to request the examination because neither they nor Dr. Navin realised that the examination ought to be made. It is therefore not easy to subsume the argument in support of this ground under the principle expounded in The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-335 and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 65, 72-76. The conduct, or rather the inactivity, of the police is not said to have been either technically unlawful or otherwise improper: it is said to have been simply incompetent. (The other difficulty, that the principle expounded in those cases is expressed to govern the discretionary control of the admission of evidence obtained in circumstances involving unlawful or improper conduct by persons in authority whereas here it is the lack of evidence which is in question, may be put to one side.) Nor is there here in question anything which might be characterised as an abuse of process, in my opinion. (Cf. Jago v District Court of New South Wales [1989] HCA 46; (1989) 63 ALJR 640.) But, whether or not the circumstances to which attention is drawn by counsel for the appellant are analogous to some other circumstances which have been authoritatively classified in criminal jurisprudence, the court has a responsibility to consider whether the circumstances upon which reliance is placed show that there has been a miscarriage of justice. I do not understand the categories of circumstances giving rise to such a miscarriage to be closed.

7. It may be assumed, without deciding, that a failure by a person in authority to cause to be undertaken some scientific examination of available material by means of which cogent evidence for or against a suspected person's guilt of a serious crime could reasonably be expected to be obtained might in some circumstances result in the conclusion, before trial, that a fair trial of the suspected person could not be had and, after trial, that he had not had a fair trial. Much would depend, in determining whether either conclusion should be drawn, on the actual beliefs, and on what should have been the beliefs, of the person in authority concerning the availability and the likely cogency of such evidence, and concerning the capacity of other persons - particularly persons acting in the suspected person's interest - to get the evidence which the person in authority had failed to get.

8. In this case there was virtually no evidence, either at trial or before this court, that scientific examination of material from the ends of the appellant's fingers would have yielded any evidence for or against the appellant's guilt. Dr Navin merely testified, in response to cross - examination, that examination "by scientific methods" of "microscopic material" from the ends of fingers could be made. There was no evidence - and in my opinion this court could not supply that lack of evidence by judicial notice - as to what information might be derived from such an examination. And there was no evidence at all as to what, if any, belief Detective Constable Kilfoyle or Dr Navin had as to the information whic h scientific examination of such material might be expected to afford. Further, there was no evidence as to whether either of the appellant's hands had been washed after the "altercation" concluded and before Dr Navin saw the appellant, nor as to what effect washing might have been expected to have on the availability of material for examination. In those circumstances it is in my opinion not possible to conclude that the appellant was deprived, by the failure to make the examination, of any prospect that such an examination might have afforded evidence tending against a conclusion of guilt. This ground fails.

9. While the learned trial judge was charging the jury there was an adjournment for luncheon. At the instance of counsel for the appellant his Honour heard, after the adjournment, evidence of events which occurred immediately after he had left the bench and as the members of the jury were walking from the jury box into the jury room which adjoins the court. The evidence established that one of the jurors said to one of the other jurors : "Look at the doodling"; that the observation was made with reference to marks on a paper lying on the bar table; that the juror was heard to speak by the appellant and by Gordon John Platt, who was instructing counsel for the Crown in the trial; but that there had been no communication between the juror and Platt, although the appellant gave evidence that the words spoken by the juror had been addressed to Platt. The learned trial judge stated his findings that the words I have quoted were spoken, and only those words, and that Mr Platt had had no communication with the juror. His Honour's findings have not been called into question. Counsel for the appellant submitted to the learned trial judge that the jury should be discharged without verdict. That submission was not accepted, but his Honour exercised the power conferred by s.8 of the Jury Act to excuse the juror from further attendance during the trial and to continue the trial to verdict with a jury of eleven. The power is conditioned on the judge's satisfaction that "by reason of illness or other sufficient cause a juror should not continue to act as a juror". His Honour stated his satisfaction that, having regard to the embarrassment which he was sure the juror, a young woman, had suffered by reason of the enquiry into her conduct, she would be unlikely to be able to "approach her duties with that degree of equanimity which is appropriate for a juror". His Honour declined to discharge the jury.

10. Counsel for the appellant frankly conceded that the ground on which this court was invited to conclude that the whole jury should have been discharged was not advanced in support of the application for discharge which was made to the trial judge. During the inquiry held by the learned trial judge into the incident the jury were brought into the court room so that the appellant might identify, as he did identify, the juror who had spoken of doodling. During that period the appellant was in the witness box, where he had been giving evidence in the inquiry and where he remained while he identified the juror. The other eleven jurors then retired from the court room. In the trial the appellant had not given evidence, but had made an unsworn statement. It was submitted that those circumstances might well have brought forcefully to the eleven jurors' attention that the appellant had failed to give sworn evidence on the trial of the issues for their determination. That consideration, according to the submission, required exercise of the discretionary power to discharge the jury without verdict.

11. Notwithstanding the statutory restrictions on commenting on an accused's failure to give evidence, the circumstance that a jury is made aware during a trial that the accused person whom the jury has in charge and who does not give evidence is permitted to give evidence will not in my opinion ordinarily provide a ground for discharge of the jury. Even if the assumption could be made that a jury might be struck of persons ignorant of that right to give evidence, or that a jury might be struck of persons who would derive from the circumstance that the accused they had in charge gave no evidence a belief that the accused had not that right, the disclosure to the jury of the true state of the criminal law of the Territory could not, in itself, disqualify the jury for the due performance of its function, in my opinion. It was not suggested by counsel for the appellant that the circumstances of the disclosure in this case might have induced some mistaken belief or some state of confusion in the minds of the jurors. I find in the circumstances no ground for apprehending miscarriage of justice. I would reject this ground of appeal.

12. The remaining ground of appeal assigned error to the learned trial judge's failure to give any warning to the jury that corroboration of Miss Duchesne's allegation of a sexual attack on her should be sought in the evidence. The only reference to corroboration in his Honour's charge was:

"There has been reference made in the address by counsel

for the Crown to corroboration. I have to tell you as a

matter of law that corroboration of the account of the

witnesses, particularly the witness Miss Duchesne, is not

necessary as a matter of law; if it is there it is a

bonus for you, and there is some evidence which could

corroborate her account. It is a bonus to you to assist

you in assessing the evidence, but it is not absolutely

necessary. Indeed it is not necessary at all in our

present law."

The "present law" to which his Honour referred is contained in s.76F of the Evidence Act 1971, the relevant provisions of which are:

"(1) Any rule of law or practice requiring the

corroboration of evidence or requiring the judge to give

a warning to the jury in criminal proceedings to the

effect that it is unsafe to convict a person on

uncorroborated evidence is abolished in so far as the

rule applies to or in relation to evidence given by the

complainant in the trial of a person for a prescribed

sexual offence.

(2) Nothing in this section shall affect the right of

the judge in prescribed sexual offence proceedings to

comment on any evidence that may be unreliable but the

judge shall not, in such proceedings, give a warning to

the jury to the effect that it is unsafe to convict the

accused person on the uncorroborated evidence of the

complainant."

It was submitted that the desirability of corroboration should have been drawn to the jury's attention and related to the lack of evidence concerning blood on the appellant's fingers.

13. I find no substance in this ground. In what was common ground between Crown and appellant there was none of those circumstances by reason of which judges in time past thought it prudent to look for corroboration of a complaint by a female of the commission of a sexual offence in relation to her by a male. Further, there was in fact evidence capable of amounting to cogent corroboration of Miss Duchesne's allegations.

I have read in draft form the reasons for judgment of Jenkins on J, with which I agree. The appeal ought to be dismissed.

I have had the opportunity of reading a draft of the judgment prepared by Jenkinson J. I agree with the orders his Honour proposes and in general with the reasoning his Honour expresses in support thereof. However, I would add remarks of my own relating to the circumstance of a jury being made aware during a trial that the accused person who has not given evidence nevertheless has the right to do so.

2. In the ACT s.74(1) of the Evidence Ordinance 1971 specifically prohibits comment by counsel for the Crown on the failure of the accused to give evidence. Breach of this provision would almost certainly lead to discharge of the jury or the quashing of a conviction on appeal. Moreover, whilst a Judge in the ACT may comment upon such failure to give evidence, the decisions of this Court in Sorgenfrie v R (1981) 51 FLR 147 at pp 168-69 and in Dominguez v R (1985) 63 ALR 181 at pp 189-91 make it clear that judicial commentary must be kept within narrow bounds. Reference may be made also to the decision of the Privy Council in Kops v The Queen (1894) AC 650 in the course of which judgment their Lordships said at p 653:

"There may no doubt be cases in which it would not

be expedient, or calculated to further the ends of

justice, which undoubtedly regards the interests of

the prisoner as much as the interests of the Crown,

to call attention to the fact that the prisoner has

not tendered himself as a witness, it being open to

him either to tender himself, or not, as he

pleases. But on the other hand there are cases in

which it appears to the Lordships that such comment

may be both legitimate and necessary."

3. Accordingly, it is appropriate to say that despite the statutory restrictions, any disclosure, other than by way of comment by the Crown, of the accused's right to give evidence will not necessarily be considered to go beyond the bounds of legitimacy. The circumstances of the disclosure will determine whether the disclosure denies the accused a fair trial.